Beijing High People's Court Affirms Liu Xiaobo's 11-Year Sentence
The Beijing High People's Court upheld the 11-year sentence of prominent writer Liu Xiaobo on February 11, 2010, for essays he wrote criticizing the Communist Party and advocating for political reforms and for his participation in Charter 08, a document calling for political reform and human rights. Liu's use of the Internet to disseminate his views figured prominently in the court's decision to affirm what is reportedly the longest sentence for the crime of inciting subversion of state power in at least a decade.
The Beijing High People's Court announced on February 11, 2010, its decision to uphold the 11-year sentence of prominent writer Liu Xiaobo for "inciting subversion of state power," according to a February 11 Human Rights in China (HRIC) report. (Boxun has posted a copy of the Beijing High People's Court's judgment.) The judgment, dated February 9, echoed the lower court's ruling that Liu had taken advantage of the "special features" (tedian) of the Internet to disseminate essays and collect signatures for Charter 08 in order to "slander and incite others to overthrow our country's state power and socialist system." As the Congressional-Executive Commission on China (CECC) noted in an earlier analysis, the lower court cited specific passages in Charter 08 and Liu's essays that were critical of the Communist Party and supportive of democracy, but provided no evidence that Liu advocated violence. (See a CECC summary of the essays and an HRIC English translation of the lower court's December 25, 2009, judgment.) In Liu's appeal defense statement (HRIC English translation), dated January 28, his lawyers argued that the court had conflated the government and ruling party with the "state" and that Liu's criticism of the government and Communist Party were a legitimate exercise of Liu's constitutional rights. The defense's appeal also explained how specific passages the court said "incited subversion of state power" were merely Liu's views on reforming China's political system, including lifting the ban on independent political parties.
The Beijing High People's Court also rejected Liu's argument that the lower court should have counted the time he served under "residential surveillance" toward his sentence because the residential surveillance amounted to de facto detention. Officials kept Liu under "residential surveillance" at an undisclosed location away from his Beijing home for more than six months before formally arresting him on June 23, 2009. Liu's lawyers argued in their appeal that the Beijing Public Security Bureau's residential surveillance of Liu was a "disguised method of detention." They noted that the residential surveillance violated the law because Liu was not held at his legal residence, Liu's wife was not allowed to live with him, and Liu was denied access to his lawyer. The Beijing High People's Court addressed the issue in cursory fashion, stating that public security officials had acted "according to law and regulations," without explaining how it came to this conclusion or further analyzing why the residential surveillance as applied to Liu should not count toward time served. (See a previous CECC analysis that finds support for the contention that Liu's residential surveillance should have counted toward time served.)
Both the trial and appellate court judgments reflect officials' heightened sensitivity to citizens' use of the Internet to criticize the government and Communist Party. Both judgments noted that Liu had taken advantage of the Internet's "special features" of "rapid transmission of information, broad reach, great social influence, and high degree of public attention." Both cited the number of hits Liu's essays received and noted that the essays had been linked to and reposted on other Web sites. As noted in a recent CECC analysis, China's public security leadership continues to prioritize control over Internet content and traffic as an essential tool in their campaign to "safeguard stability."
Jon Huntsman, U.S. Ambassador to China, said in a press release on Liu's appeal that "[Liu] should not have been sentenced in the first place and should be released immediately. We have raised our concerns about Mr. Liu’s detention repeatedly and at high levels, both in Beijing and in Washington, since he was taken into custody over a year ago. Mr. Liu has peacefully worked for the establishment of political openness and accountability in China. Persecution of individuals for the peaceful expression of political views is inconsistent with internationally-recognized norms of human rights." Following Liu's original sentence in December, the UN High Commissioner for Human Rights Navi Pillay said "[t]he conviction and extremely harsh sentencing of Liu Xiaobo mark a further severe restriction on the scope of freedom of expression in China," according to a December 25 UN News Centre article. In January, four Communist Party officials signed a letter calling for authorities to reverse the verdict against Liu, according to a January 24 Associated Press article (via Yahoo!News). In response to a question about Liu's appeal decision, Chinese Ministry of Foreign Affairs spokesperson Ma Zhaoxu told reporters at a regular press conference on February 11 that China has "no dissidents," according to a February 11 Agence France-Presse article (via Google News). In addition, Xinhua, China's central government news agency, issued a report on February 11 citing several Chinese legal scholars' support of the decision. "The court's verdict is in accordance with China's Criminal Law and is in line with the International Covenant on Civil and Political Rights as well as internationally-recognized restriction of norms regarding freedom of expression," said Professor Gao Mingxuan, president of the China branch of the International Association of Penal Law.
See a previous CECC analysis on Liu's case for a discussion of how China's use of criminal law anti-subversion provisions to punish peacefully expressed views violates international human rights standards, including the International Covenant on Civil and Political Rights.
For more information on how Chinese officials use the criminal charge of subversion or inciting subversion to punish citizens who express opposition to the Communist Party, see pp. 46-47 of the CECC 2009 Annual Report.
TEXT: The judgment, dated February 9, echoed the lower court's ruling that Liu had taken advantage of the "special features" (tedian) of the Internet to disseminate essays and collect signatures for Charter 08 in order to "slander and incite others to overthrow China's state power and socialist system." SOURCE: 上诉人刘晓波以推翻我国人民民主专政的国家政权和社会主义制度为目的，利用互联网传递信息快、传播范围广、社会影响大、公众关注度高的特点，采用撰写并在 互联网上发布文章、广泛征集签名等方式，公然诽谤并煽动他人推翻我国国家政权和社会主义制度，… 二零一零年二月九日 TEXT: In Liu's appeal defense statement, dated January 28, Liu argued that the court had conflated the government and ruling party with the "state" and that Liu's criticism of the government and Communist Party were a legitimate exercise of Liu's constitutional rights. SOURCE: Normally in political science and legal theory, “state power,” the “government,” and the “ruling party” are all different concepts….The government is the executor of a state’s administrative power. In the course of exercising its power, it is difficult for the government to avoid shortcomings or mistakes. As the ruling party is the wielder of state power, and it is often said that it “governs,” it is also difficult for the ruling party, in the course of governing, to avoid shortcomings or inadequacies and mistakes. Criticizing or censuring these types of shortcomings, inadequacies, or mistakes is a right due to any citizen, and it is also the foundation of Article 41 of the Constitution of the People’s Republic of China. Specific to this case, that Liu Xiaobo, in his capacity as a citizen, criticized the government and the ruling Communist Party of China to the point of opposition was one method of exercising his constitutional rights. Whether the contents of the criticism or opposition were right or wrong has no relation to the subversion of state power! TEXT: The defense's appeal also explained how specific passages the court said "subverted state power" were merely Liu's views on reforming China's political system, including loosening the prohibition on independent political parties. SOURCE: Setting aside the suspicion that the “criminal evidence” set forth in the verdict and listed above was interpreted out of context and wantonly distorted, from the perspective of a commonly held understanding of “free speech,” one can easily see that the “criminal evidence” consisted only of Liu Xiaobo’s views and ideas. Putting aside the question of whether or not his views and ideas are correct, just how are they relevant to “inciting subversion of state power”? Specifically: 1. The excerpted phrase “changing the regime by changing society” is the title of Liu Xiaobo’s article “Changing the Regime by Changing Society.” From the title it can be seen, that the main purpose of Liu Xiaobo in writing this article is to express his personal insights on the reform of the political system. So-called “changing the regime” is not “subversion of the regime,” and the two are not the same concept. They have completely different content and implications (The change of government of each term can be interpreted as changing the regimes, yet only overthrowing the regime through violence and other illegal means can be called subversion of the regime.); further, there is no such crime as “changing state power.” (Upon close reading of the full text of “Changing the Regime by Changing Society,” it can be seen that what Liu Xiaobo advocated was “not pursuing the goal of seizing state power, but dedication to the establishment of a human society in which people can live with dignity.” It can be further clearly concluded that Liu Xiaobo did not “incite subversion of state power.”) 2. “For the emergence of a free China, hopes should be placed in the continuous expansion of the ‘new power’ among the people rather than in the ‘new government’ of the ruler.” This excerpt is only half of the sentence in Liu Xiaobo’s article “Can It Be that the Chinese People Deserve Only ‘Party-Led Democracy’?” The original text reads, “For the emergence of a free China, hopes should be placed in the continuous expansion of the ‘new power’ among the people rather than in the ‘new government’ of the ruler; the day that people’s dignity can be affirmed conceptually and legally, is the day that human rights of our countrymen receive institutional protections.” Liu Xiaobo wrote this article to express his personal overview regarding the white paper, “The Construction of Chinese Democratic Politics,” released by the Information Office of the State Council of the People’s Republic of China on October 19, 2005, and was never an act to incite others to subvert state power. Free China is only a vision of the future, containing no implication of subverting state power. (As long as one takes a closer look into the full text of “Can It Be that the Chinese People Deserve Only ‘Party-Led Democracy’?” instead of judging merely from the excerpts cited in the verdict, this conclusion is clear. ) 3. “Abolish the privileges [derived from] the one-party monopoly on power” and “establish the federal republic of China under the frameworkof democracy and constitutional government” are two sentences from Charter 08. The original text reads, “Lift the ban on political parties. Regulate party activities according to the Constitution and law; abolish the privileges [derived from] the one-party monopoly on power; establish the principle of free and fair competition for political parties’ activities; normalize and legally regulate party politics”; “On the premise of free democracy, seek a cross-strait reconciliation plan through equal negotiation and cooperative interaction. Wisely explore possible ways and institutional blueprints for mutual prosperity of all ethnic groups and establish the federal republic of China under the frameworkof democracy and constitutional government.” The two passages from Charter 08 mainly propose ideas for loosening the prohibition of political parties and for the resolution of uniting the country in the future, but were never the acts for inciting others to subvert state power. “Establish China’s federal republic” was once the assertion of the Communist Party of China, and thus it cannot be concluded that Liu Xiaobo incited others to subvert state power. (With a closer reading of the full text of Charter 08, rather than judging merely from the excerpts of the verdict, this conclusion is clear.) TEXT: Liu's lawyers argued that the Beijing Public Security Bureau's residential surveillance of Liu was a "disguised method of detention." SOURCE: The residential surveillance of Liu Xiaobo undertaken by the investigating organ of this case, the Beijing Municipal Public Security Bureau, is actually a disguised method of detention, and the duration of Liu’s surveillance should therefore be set off against his sentence. It is wrong that the verdict did not accept this argument. TEXT: They noted that the residential surveillance violated the law because Liu was not held at his legal residence, Liu's wife was not allowed to live with him, and Liu was denied access to his lawyer. SOURCE: According to the stipulations of Article 57 of the CPL and the stipulations of Articles 97 and 98 of the Regulations on the Procedures for Handling Criminal Cases by Public Security Organs, investigating organs shall observe the following provisions when adopting residential surveillance measures: 1) residential surveillance shall be carried out in the criminal suspect’s domicile (only for those without a fixed domicile can residential surveillance be conducted at a location determined by the investigating organ); 2) those put under residential surveillance have a right to live together with family members with whom they reside; and 3) those put under residential surveillance do not need approval to meet with their attorney. TEXT: The Beijing High People's Court addressed the issue in cursory fashion, stating that public security officials had acted "according to law and regulations," without explaining how it came to this conclusion. SOURCE: 公安机关对刘晓波采取的监视居住的强制措施，符合法律规定，原判处理适当。 TEXT: Both judgments noted that Liu had taken advantage of the Internet's "special features" of "rapid transmission of information, broad reach, great social influence, and high degree of public attention." Both cited the number of hits Liu's essays received and noted that the essays had been linked to and reposted on other Web sites. SOURCE: Trial court: For Chinese original, see http://www.hrichina.org/public/PDFs/PressReleases/2009.12.30-LXB-verdict.pdf pp. 7, and top of p. 10. Here’s English translation: The article carried the posting dates of February 26, 2006 and February 27, 2006, respectively. Until December 23, 2008, when the article was accessed, there were a total of five links to sites that had posted or reproduced it, with a total of 748 hits. etc. This court believes that defendant Liu Xiaobo, with the intention of overthrowing the state power and socialist system of our country’s people's democratic dictatorship, used the Internet's features of rapid transmission of information, broad reach, great social influence, and high degree of public attention, as well as the method of writing and publishing articles on the Internet, to slander and incite others to overthrow China's state power and socialist system. Appellate court: 该文章截至至2008年12月23日，在互联网上共存在登载或转载该文章的网页链接共计5个，总点击率402次。… 该文章截至至2008年12月23日，在互联网上共存在登载或转载该文章的网页链接共计5个，总点击率748次。 该文章截至至2008年12月23日，在互联网上共存在登载或转载该文章的网页链接共计8个，总点击率488次。 本院认为，上诉人刘晓波以推翻我国人民民主专政的国家政权和社会主义制度为目的，利用互联网传递信息快、传播范围广、社会影响大、公众关注度高的特点，采 用撰写并在互联网上发布文章、广泛征集签名等方式，公然诽谤并煽动他人推翻我国国家政权和社会主义制度，其行为已构成煽动颠覆国家政权罪，且犯罪事件长、 主观恶性大，发布的文章被多家网站链接、转载并被多人浏览，影响恶劣，罪行重大，依法应予惩处 x